P’s Curator Bonis v Criminal Injuries Compensation Board 1997

FACTS:-

The curator bonis of an incapax (or ward) sought judicial review of a decision of the CICB, to refuse an application for an award under the Scheme. The ward had been conceived in April 1972 and born in January 1973 as a result of an incestuous rape by her maternal grandfather upon her mother. The grandfather was convicted of incestuous sexual intercourse in 1991.

The ward suffered severe congenital mental and physical abnormalities on account of the consanguinity of her parents. The CICB turned down the claim on the grounds that the defects were as a result of the parents’ consanguinity and not the rape and that furthermore, at the time of the rape, the ward was living with the perpetrator of the crime as part of the same family and as a result an exception in the scheme applied. This exception precluded any person from making a claim where the victim and the perpetrator had been living under the same roof before the 1^st October 1979.

The scheme stated that the Board would entertain an application for personal injury directly attributable to a crime of violence.

The CICB had accepted that “personal injuries” was a term which could properly be applied to injuries occurring before birth. The precise stage at which the injuries occurred was not relevant to their decision. However congenital injuries could not properly be held to be injuries within the meaning of the Scheme, because they were inherent in the Applicant. At no point did the Applicant have the potential of existence without them. There was nothing in the crime of violence which had caused her to exist in a state less perfect than she would otherwise have done. The birth was attributable to an act of rape, but the injuries as distinct from the birth were not attributable to the rape but to the genetic make-up of the parents.

In relation to the pre 1979 rule, the CICB were satisfied that at the time of conception and of birth, the mother was living in family with the offender.

JUDGMENT:-

Lord Osborne considered the terms of the Criminal Injuries Compensation Scheme 1964, which had been revised in 1969 and applicable only to incidents occurring prior to 1 October 1979.

The petitioner’s counsel had outlined seven areas for consideration:-

1)    The ordinary meaning of the word “injury”

2)    The institutional use of the word “injury”

3)    The word “injury” in American cases

4)    The line of authority relating to wrongful life

5)    The “wrongful life” cases where a remedy in reparation had been made

6)    The effect of causation on the argument

7)    The cases on “pre-conception” tort

1) The ordinary meaning of the word “injury”

Lord Osborne considered the Oxford English Dictionary definition of “injury”, which was:-

1)    Wrongful action or treatment; violation or infringement of another’s rights; suffering or mischief wilfully and unjustly inflicted

2)    Intentionally hurtful of offensive speech or words; reviling, insult, calumny; a taunt, an affront;

3)    (a) hurt or loss caused to or sustained by a person or thing; harm, detriment, damage;

(b) a bodily wound or sore

2) The institutional meaning of the word “injury”

Here the definition focussed on the wrongful act. It was clear that the definitions were broad enough to encompass the concept of personal injury for which the petitioner was contending in this case.

Clearly the definition was very wide, and this was reflected in caselaw.

3) The word “injury” in American cases

In the American case of Zepeda v Zepeda 190 NE 2d 849, the court was concerned with the plight of an adulterine bastard. The word “injury” was one that applied to one who had been born and remained illegitimate. In Curlender v Bio-Science Laboratories App 165 Cal Rptr 477, a claim was made on behalf of a child with Tay-Sachs disease, seeking recovery on the theory of alleged “wrongful life”. The court considered that the birth of a Claimant with a genetic defect was regarded as an injury cognisable at law.

4) The line of authority relating to “wrongful life”

In the English case of McKay v Essex Area Health Authority [1982] QB 1166 the court was concerned with an infant Claimant, who had been born disabled as a result of an infection of rubella suffered by her mother, whilst the child was in her womb. It was alleged that but for the negligence of the hospital, the mother would have aborted the foetus. The child claimed damages for having suffered entry into a life in which her injuries were highly debilitating. The Court of Appeal held that the child’s claim was contrary to public policy as being a violation of the sanctity of human life and a claim which could not be recognised and enforced, because the court could not evaluate non-existence for the purpose of awarded damages for the denial of it.

In Berman v Allan 404 A 2d 8 the court held that an infant, who was born afflicted with Down’s Syndrome, did not suffer any damage cognisable at law by being brought into existence and so doctors could not be held liable in a medical negligence action founded upon “wrongful life.” Similar decisions were made in the cases of Alquijay v St Lukes-Roosevelt Hospital Center, 483 NYS 2d 994, Azzolino v Dingfelder 337 SE 2d 528, Williams v State of New York 223 NE 2d 343 and Cowe v Forum Group Inc. 575 NE 2d 630.

5) The “wrongful life” cases where a remedy in reparation had been given

In Harbeson v Parke-Davis Inc. Wash 656 P 2d 483 the court held (in an action concerning the taking of a drug during pregnancy) that a child might maintain an action for “wrongful life” in order to recover extraordinary expenses to be incurred during the child’s lifetime as a result of the child’s congenital defect. However, general damages for “wrongful life” were not admissible. In Turpi v Sortini Sup 182 Cal Rptr 337 it was held that whilst general damages could not be recovered on behalf of a child in respect of hereditary deafness, the child could recover special damages for extraordinary expenses necessary to treat the hereditary ailment.    In Procanik v Cilio 478 A 2d 755 the Claimatn sought damages for birth defects and impaired childhood in consequence of congenital rubella resulting from the mother’s measles. The right of the child to recover extraordinary medical expenses was recognised.

6) The effect of causation on the argument

The petitioner’s counsel argued that an act could properly be seen as causing “injury” and giving life at the same time, such as the motorist who knocks down the starving pedestrian, who is then taken to hospital and given nourishment.

7) The cases on “pre-conception” tort

In the case of Jorgensen v Meade Johnson Laboratories Inc. 483 F 2d 237 a father of deceased and living mongoloid children brought an action claiming that the mongoloid condition of the children resulted from the mother’s taking birth control pills manufactured by the Defendants. The court did not exclude pre-conception harm from consideration and it used the word “injured”. Other American cases recognised the possibility of a pre-conception tort; Renslow v Mennonite Hospital 367 NE 2d 1250, Bergstreser v Mitchell 577 F 2d 22, Graham v Keuchel 847 P 2d 342.

Lord Osborne considered the Congenital Disabilities (Civil Liability) Act 1976, but this Act did not extend to Scotland. However the Scottish Law Commission had concluded that its caselaw would achieve the same result.

Lord Osborne turned to the issue of whether the element of violence was a direct cause of the child being born with profound mental handicap as opposed to being born normal. The Petitioner’s counsel had argued that it was irrelevant that the act that caused the child to come into existence was also that which had caused it to suffer.

Lord Osborne considered the pre 1979 argument. The Petitioner’s counsel argued that since the victim, the child had no independent life at the time of the crime, it could not be said to have been living with the offender as a member of the same family. This was contested by the Respondent’s counsel.

The Respondent’s counsel sounded a note of caution about the American authorities, which emanated from different states, with their own system of laws and where looser language was used. In any event, the law in the United States did not recognise any right on the part of a child to be born perfect, or not to be born at all. There was no duty on anyone to prevent the birth of a child which possessed defects. Being born under one set of circumstances, or to one set of parents, rather than another was not a cognisable wrong.

The Respondent’s counsel also argued that, looking at the matter in a more general way, the basic difficulty which the petitioner faced was that there was no possibility of a pre and post injury comparison in the present circumstances. The child’s defects were inherent in her genetic makeup. One of the difficulties of accepting the existence of a right to be born normal was that it was virtually impossible to define the limits of normality. Counsel for the Respondent pointed out that in Jorgensen v Meade Johnson Laboratories Inc and Renslow v Mennonite Hospital the position was that, but for the negligent act, a healthy child could have been born. The case of Bergstreser v Mitchell had not been followed in other cases.

In addition, in relation to the Congenital Disabilities (Civil Liability) Act 1976, for liability to exist there had to be an occurrence and disabilities wich would not otherwise have been present. The scope and purpose of the Act of 1976 had been explained in McKay v Essex Area Health Authority. A child should have no right of action for “wrongful life”.

In relation to the pre 1979 rule, the Respondent’s counsel submitted that it was clear from the case of Hamilton v Fife Health Board [1993] SLT 624 that injury  could be done to an unborn foetus, and in the present case the foetus was “living together at the time as (a member) of the same family” with the offender.

Finally the Respondent’s counsel submitted that the personal injury in this case was not directly attributable to a crime of violence. If a woman was raped and made pregnant, there was a recognition in terms of the scheme that the pregnancy was part of the injury. However the position of the child was different. The earliest starting point for the child’s injuries was not the rape itself but the subsequent conception or even the birth.

Lord Osborne said that in ordinary language, the concept of injury necessarily involved the deleterious alteration of a pre-existing condition, whereas in the present application, the child sought damages for the trauma of being who she was. If there had been no wrongful conduct, the child would not have existed. The choice was between impaired existence and non existence.

There was also a serious difficulty in defining what was normal in human terms. There was no answer to the question of what degree of deviation from the supposed normal pattern of human existence was to be regarded as a injury. There were no useable criteria.

On the other hand, in some of the American cases, the recovery of special damages had been allowed in this type of case. However such decision were based on considerations of expediency and that particular approach had not been generally followed.

In the case of Jorgensen the mother’s chromosomal structure had been altered by a drug prior to conception, thus the possibility had existed before the wrongful act of the parents having a healthy child. In this case it was inevitable that the child involved would be as that child was. In the case of McKay it was plainly recognised that the defence concerned could not be categorised as an “injury.”

Lord Osborne said that the CICB scheme was not a statutory one, and consequently the court should not construe the scheme as if it were a statute but as a public announcement of what the government was willing to do.

The cases from the United States had to be treated with caution, particularly since they came from different states with different laws. Some of the decisions came from elected judges who took it upon themselves to ground their decisions on expediency and public policy. The cases were not concerned with the particular facts at issue here.

In the case of Becker v Schwartz 413 NYS 2d 895 the court said that the claims for “wrongful life” did not constitute legally cognisable causes of action. This decision had been followed in other United States cases.

In the United Kingdom, there was only one similar case, which was McKay. The Claimant parents claimed that had it not been for the negligence of the doctors, the mother would have had an abortion. The Court of Appeal said that the doctors were under no legal obligation to terminate the life of the foetus. It did not matter whether the injury was not an injury recognised by the law or the damages were not damages which the law could award. Whichever way it was put, the objection meant that the cause of action was not cognisable or justiciable or reasonable. Lord Ackner in that case had said that a court could not begin to evaluate non-existence.

Therefore congenital deficiencies could not properly be held to be injuries within the meaning of the Scheme. In addition paragraph 10 of the Scheme referred to the assessment of personal injury damages according to the common law system. On the basis of McKay this would be quite impossible.

However Lord Osborne said that the question of whether the “injuries” were caused by the act of rape was a jury question. In his opinion that they would accept that the birth of the child and its disabilities were both directly attributable to the same criminal act. However in light of the conclusion that Lord Osborne had reached in relation to criminal injuries, this conclusion made no difference to the result in the case.

In relation to the pre-1979 rule, Lord Osborne felt that a foetus could not be said to be living with the offender as “members of the same family.” The paragraph in the scheme was plainly intended to refer to persons in life independent from their mothers. A foetus was not a person in any accepted sense.

In summary, the decision which Lord Osborne had reached was that the petitioner had failed to demonstrate that he was entitled to the remedy sought.